SPECIAL REPORT: OOIDA argues legality of cross-border program

| 2/12/2008

Tuesday, Feb. 12, 2008 – A federal appeals court in California is set to decide whether the cross-border program with Mexico is on solid legal ground or quicksand.

Today attorneys for the Owner-Operator Independent Drivers Association presented oral arguments in the Association’s challenge of the DOT’s cross-border trucking pilot program before the 9th Circuit Federal Court of Appeals in San Francisco.

“We had two major points to make in the arguments. We were able to make them effectively, and the court understood completely what our position was,” said Paul Cullen Sr. of The Cullen Law Firm, OOIDA’s legal counsel.

“I came away with the belief that they were sympathetic to our position – but you never know until the very end.”

The Association filed its legal challenge of the program in late 2007, claiming that the program is in violation of federal laws and regulations.

Arguments presented were supported in part by a legal brief filed Dec. 3, 2007, whereby the Association and its attorneys provided the court with safety statistics and inspection reports on four of the seven Mexico-domiciled carriers participating in the cross-border program at that time.

“It makes no sense that while safety and security laws are continually being ratcheted up on U.S.-based drivers and companies, the DOT wants to allow their Mexico-based counterparts to get by with lower standards,” said Todd Spencer, executive vice president of OOIDA.

“Ever since we filed our original legal challenge last September, our attorneys have been chomping at the bit for this day. We are confident that the law is on our side.”

Cullen explained that the legal team presented two points in the oral arguments before the court today.

First, OOIDA’s legal team highlighted the lack of authority granted to the Federal Motor Carrier Safety Administration to accept Mexican regulations as equivalent to regs U.S. truckers face.

The Association challenged the assertion that drug and alcohol testing programs, medical qualification standards, and commercial driver’s license requirements for truck drivers in Mexico are equivalent to those for U.S. drivers.

“There is absolutely no authority for the agency to do that. As a matter of fact, the agency is forbidden to do that by federal law,” Cullen said.

He went on to explain that the Supreme Court recently looked into this very issue and ruled that the agency has no discretion.

“FMCSA cannot change compliance requirements – that’s beyond their authority,” Cullen explained. “The agency’s actions here are not in accordance with law and violate federal statutes.”

The second major point OOIDA’s legal team presented today in its oral arguments challenged the way FMCSA put the cross-border program together.

There is a provision that allows a federal agency to grant exemptions to certain regulations, but not statutes. However, in order to grant those exemptions, there is a very detailed process an agency must follow.

Cullen said the way FMCSA put the program together, essentially ignoring the federally dictated process, is a huge legal problem for the program.

Among the steps an agency must follow is the publication of a detailed plan in the Federal Register that outlines which regulations a motor carrier may be exempt from and why. The public then must have the opportunity to comment. FMCSA did not do that with the cross-border program.

The Association also challenged the DOT’s assertion that Mexico-based trucks and drivers are actually safer than their U.S. counterparts in written arguments submitted to the court in early December 2007.

In the brief, Rick Craig, OOIDA’s director of regulatory affairs dissects data from FMCSA’s own SafeStat database collected and analyzed by OOIDA staff and by a paralegal at The Cullen Law Firm.

“My review of these inspection reports revealed patterns of unsafe operations by Mexico-domiciled motor carriers in the border areas of the United States,” Craig testified in a declaration filed with the reply brief.

Catherine O’Mara, a paralegal with The Cullen Law Firm of Washington, DC, compiled the safety inspection reports on the Mexican motor carriers and wrote a summary of selected SafeStat Data that truly shines a light on Craig’s assertion.

O’Mara provided a table summarizing total inspections with violations, total violations, driver out-of-service orders, vehicle out-of-service orders, number of power units and the number of violations per vehicle.

In the span of one year, Sept. 21, 2006, through Sept. 21, 2007, the four Mexican motor carriers amassed more than 1,700 violations. One of the companies averaged more than 112 violations per truck for the 10 power units in the fleet during that year.

“I observe that these motor carriers also received many violations for which an out-of-service order should have been issued, but was not,” Craig testified.

Examples included violations related to lighting, suspension, tires and all other driver violations, such as a non-English speaking driver.

Craig also noted that there were numerous other violations that could have been the basis for an out-of-service order, but the inspection report does not provide enough information to make that determination.

Examples included violations related to brakes and inspection or repair and maintenance of parts and accessories.

The legality of the program is also being questioned because of a recent funding cut signed into law by President Bush.

The $555 billion omnibus spending bill, which President George W. Bush signed into law, contained a provision that cuts funding from the cross-border program.

The provisions states: “None of the funds made available under this Act may be used to establish a cross-border motor carrier demonstration program to allow Mexico-domiciled motor carriers to operate beyond the commercial zones along the international border between the United States and Mexico.”

Officials with OOIDA learned shortly after the measure was signed into law that FMCSA officials had no intention of complying with the provision. The continuation of the program despite the funding cut has drawn heavy fire from numerous lawmakers on Capitol Hill.

Arguments on a separate lawsuit related to the program will also be heard from the Sierra Club, International Brotherhood of Teamsters and Public Citizen.

The court challenge of the cross-border program is on an expedited schedule. Even though there is no set deadline for the court to rule on the arguments, Cullen is hopeful to receive a decision in weeks.

– By Jami Jones, senior editor